WIDOW(er)

A. Who is Covered: Legal Marriage to U.S. Citizen, Not Remarried 

Widow(er)s of U.S. citizens have the broadest avenue of relief should their U.S. citizen spouse die. The statute allows them to remain classified as immediate relatives and to continue to be eligible to immigrate if they file an I-360 self-petition within two years of the death of the U.S. citizen or to automatically convert an already-filed I-130 to an I-360. They must also show a good faith marriage, and demonstrate that they have not remarried to immigrate as an immediate relative.6 Note that if the applicant does remarry, they may still be able to pursue relief, under INA § 204(l) instead (see next section).

Although previously the law required that the marriage have lasted a minimum of two years before the U.S. citizen’s death in order to seek relief as the widow(er) of a U.S. citizen, that requirement was removed in 2009.8 In order to continue with the immigration process after a U.S. citizen spouse’s death, applicants must not remarry, must show that they were legally married to the U.S. citizen, are otherwise admissible, and that there was no legal separation or divorce at the time of the death. Depending on where they were in the immigration process when the U.S. citizen spouse passed away, the noncitizen widow(er) may submit an I-360 self-petition or, if the deceased spouse had already submitted an I-130 petition on their behalf, then the widow(er) may proceed with their permanent resident application notwithstanding the spouse’s death. 

The widow(er)s apply as immediate relatives, and unlike other immediate relatives, they can include unmarried sons or daughters under 21 in the application, if the child was under 21 when the visa petition (I-130 or I-360) was filed. Although widow(er)s of U.S. citizens must still prove they are admissible, there are some differences in terms of how the inadmissibility grounds apply to these applicants. USCIS does not require a Form I-864 Affidavit of Support for either the widow(er) or the accompanying children in order to establish they will not become a public charge under INA § 212(a)(4).9 A Form I-864W exemption should be filed. 10 Additionally, for purposes of INA § 212(a)(9)(B)(i), a widow(er) and accompanying children will not accumulate unlawful presence if they were the beneficiary of a spousal I-130 that was pending on October 28, 2009 and that is later approved as a self-petition.11 Widow(ers) are not otherwise exempt from the bars for unlawful presence, and will be subject to the three- and ten-year bars if they accumulate sufficient time and must consular process. The waiver for unlawful presence requires a U.S. citizen or permanent resident spouse or parent, which many widow(ers) will lack.

USCIS “should generally exercise discretion favorably” if an applicant has a prior removal order and files an I-212 form for permission to reapply, if there are no significant adverse factors, and the underlying Form I-130 has been approved as a Form I-360.13 Widow(er) benefits have the broadest coverage for surviving spouses compared to other paths covered here in that no affidavit or support or substitute sponsor is needed, no U.S. residence is required, and special considerations are given for certain grounds of inadmissibility.

B. How to Apply for U.S. Citizen Widow(er) Benefits

Upon notification of the death of a U.S. citizen petitioning spouse, USCIS will automatically convert a pending or approved Form I-130 to a Form I-360 self-petition, and the applicant does not need to re-file. The date of filing is deemed to be the date that the initial I-130, if any, was filed. Otherwise, the filing of the I-360 initiates the process. Children who are unmarried and under age 21 at time of filing the I-130 or I-360 can be included. 

If there was no I-130 pending at the time of death, the widow(er) can file an I-360 self-petition as an immediate relative. In this circumstance, the I-360 must be filed within two years of the U.S. citizen’s death. 

Applicants cannot remarry before they adjust or receive an immigrant visa, must show that there was a legal marriage, and that there was no divorce or legal separation at the time of the U.S. citizen’s death. An I-360 can be filed simultaneously with an I-485 adjustment application. An overseas widow(er) can go through the I-360 approval or I-130/I360 conversion process and consular process overseas.

Supporting documents for the widow/(er)’s I-485 include: 

• Two passport photos; 

• Copy of birth certificate(s) for applicant and any accompanying children;

• Copy of passport page with admission stamp or other proof of admission; 

• Form I-693 Medical Exam, valid for one year, which can be presented at time of interview to avoid expiration; 

• Form I-864W Request for Exemption for Intending Immigrant’s Affidavit of Support; 

• Copy of I-130 receipt and approval, if applicable; or Form I-360 receipt and approval; or 

• Form I-360 with required documents, which include the death certificate and documentation to evidence a good faith marriage, if filing concurrently with I-485.